RABORN L. DAVIS, JR., HUSBAND, APPELLANT,
v.
DIANA W. DAVIS, WIFE, APPELLEE
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The court affirmed the trial court's denial of the husband's motion to modify custody and provisionally granted the wife's motion for appellate attorney's fees, remanding for a hearing on the reasonable amount and each party's ability to pay.
In appellate dissolution cases, 'prevailing party' status does not automatically determine attorney's fees; instead, courts provisionally grant fees subject to a trial court evidentiary hearing on the parties' needs, ability to pay, and reasonable fee amount.
[1] In appellate dissolution cases, entitlement to attorney's fees is not determined solely by prevailing party status; courts must provisionally grant fees and remand for an…
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Join FLexlaw to unlock all legal intelligenceThe husband appealed the trial court's order denying his motion to modify the final judgment of dissolution to change primary residential custody of o…
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WIGGINTON, Judge.
The trial court’s order denying the husband’s motion to modify the final judgment of dissolution of marriage to change primary residential custody of one of the parties’ three minor children to the husband is hereby AFFIRMED. Both parties seek an award of attorney’s fees pursuant to section 61.16, Florida Statutes, based on the prevailing party theory.
However, on the issue of appellate attorney’s fees in dissolution cases, “prevailing party” status is not always dispositive. The courts, instead, often provisionally grant an award of fees subject to the trial court’s conducting an evidentiary hearing to verify the respective parties’ needs and ability to pay, as well as to assess a reasonable amount. See Sierra v. Sierra, 505 So. 2d 432, 433 (Fla.1987); Solernou v. Solernou, 556 So. 2d 1144 (Fla. 3d DCA 1989); Thornton v. Thornton, 433 So. 2d 682 (Fla. 5th DCA), review denied, 443 So. 2d 980 (Fla.1983); Shrine v. Shrine, 429 So. 2d 765 (Fla. 1st DCA 1983); Ludemann v. Ludemann, 317 So. 2d 860 (Fla. 4th DCA 1975); P. Padavano, Florida Appellate Practice section 16.5, at 269 (1988).
Accordingly, in the present case, the wife’s motion for attorney’s fees is provisionally granted and the husband’s motion is denied. The cause is remanded to the trial court on the ques tion of the amount of a reasonable fee for the appellate services of the wife’s attorney and the question of what part of that amount should be paid by either party due to a present disparity between the parties’ ability to pay. Shrine; see also Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977).
SHIVERS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…. 2d 1006 (Fla. 4th DCA 1991)(lodestar method may be useful method in considering a final allowance of fees but does not apply to temporary awards because many of the Rowe factors, such as who is the prevailing party, are not known); Davis v. Davis, 584 So. 2d 1117 (Fla. 1st DCA 1991)(prevailing party is not always dispositive). We resolve this conflict by pointing out that proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. See § 61.011, Fl…
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Romano v. Romano, 632 So. 2d 207 (Fla. 4th DCA 1994)…recover her appellate costs and attorney’s fees. We provisionally grant her motion and direct the trial court to conduct an evidentiary hearing to determine a reasonable amount of fees based upon present need and ability to pay. See Davis v. Davis, 584 So. 2d 1117 (Fla. 1st DCA 1991), and cases cited therein, which provide for such a procedure. GLICKSTEIN and POLEN, JJ., concur. . Landay v. Landay, 429 So. 2d 1197 (Fla.1983). . Deducting that $21,600 from the husband’s share and adding it to the wife's sho…
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Dep't of Health & Rehabilitative Servs. v. Holland, 602 So. 2d 652 (Fla. 5th DCA 1992)…awarded appellate attorney’s fees to Holland “as the prevailing party,” pursuant to section 61.16, against HRS. In the first place, appellate fees in dissolution cases should not be awarded on the basis of “who prevailed” on appeal. Davis v. Davis, 584 So. 2d 1117 (Fla. 1st DCA 1991); Thornton v. Thornton, 433 So. 2d 682 (Fla. 5th DCA), rev. denied, 443 So. 2d 980 (Fla.1983); Ludemann v. Ludemann, 317 So. 2d 860 (Fla. 4th DCA 1975). Need and ability to pay and the comparative financial resources of the partie…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peavy v. State, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987)
- Avie Lee Thornton v. Lacy Thornton, Jr., 433 So. 2d 682 (Fla. 5th DCA 1983)
- Ursel Ludemann v. Manfred Ludemann, 317 So. 2d 860 (Fla. 4th DCA 1975)
- Shrine v. Bertram Shrine, Jr., 429 So. 2d 765 (Fla. 1st DCA 1983)
- Magdalena Sofia Solernou v. Solernou, 556 So. 2d 1144 (Fla. 3d DCA 1989)